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HERE THE JUDGE DID NOT HAVE THE AUTHORITY TO SUMMARILY MAKE A SEVERE ABUSE FINDING AND TERMINATE RESPONDENTS’ PARENTAL RIGHTS BASED UPON A PRIOR ABUSE HEARING; SEVERE ABUSE WAS NOT ALLEGED IN THE PRIOR HEARING; A SEVERE ABUSE FINDING MUST BE BASED ON A “CLEAR AND CONVINCING” STANDARD, NOT THE “PREPONDERANCE OF EVIDENCE” STANDARD APPLIED IN THE PRIOR HEARING; IN ADDITION, THE JUDGE SHOULD NOT HAVE ISSUED AN ORDER OF DISPOSITION WITHOUT HOLDING A DISPOSITIONAL HEARING; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s “severe abuse” finding and the consequent termination of parental rights, determined it was error to make these rulings based upon a prior abuse hearing because “severe abuse” was not alleged in that hearing. In addition, a finding of “severe abuse” must be based on “clear and convincing evidence,” not the “preponderance of the evidence” standard applied in the prior hearing. Also, the judge should not have issued an order of disposition without holding a dispositional hearing:

… [T]he court did not have the authority, in the context of this Social Services Law § 384-b proceeding, to retroactively make a finding of severe abuse under Family Court Act § 1051 (e) based upon the evidence adduced during the prior article 10 abuse proceeding. … Family Court Act § 1051 (e) provides that in an article 10 abuse case, the court may “[i]n addition to a finding of abuse, . . . enter a finding of severe abuse or repeated abuse, . . . which shall be admissible in a proceeding to terminate parental rights pursuant to [Social Services Law § 384-b (4) (e)] . . . If the court makes such additional finding of severe abuse or repeated abuse, the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence.”

Thus, while it is true that a court is permitted to make a severe abuse finding as part of the disposition in an article 10 abuse case … , that did not occur here. Indeed, in the context of the underlying article 10 proceeding, petitioner did not seek a determination that Respondents severely abused the child, and the court made no such determination. Moreover, the entirety of the court’s findings in the article 10 matter were based upon a preponderance of the evidence—not clear and convincing evidence as required by the statute … . Finally, we note that the court improperly issued an order of disposition in this case before conducting a dispositional hearing (see Family Ct Act § 631; Social Services Law § 384-b [8] [f]). We therefore reverse the order and remit the matter to Family Court for further proceedings on the petition.  Matter of Kevin V. (Sara L.), 2025 NY Slip Op 06422, Fourth Dept 11-21-25

 

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DEFENDANT HOSPITAL’S EMERGENCY ROOM PERSONNEL WERE UNAWARE PLAINTIFF HAD EXECUTED A “MOLST” DECLINING LIFE-SAVING TREATMENT WHEN THEY PERFORMED CHEST COMPRESSIONS WHICH REVIVED PLAINTIFF BUT FRACTURED RIBS; PLAINTIFF SUFFERED ANOTHER HEART ATTACK SEVEN HOURS LATER AND DIED; A JURY AWARDED DAMAGES FOR PAIN AND SUFFERING; PLAINTIFF’S EXPERT DID NOT SUFFICIENTLY ARTICULATE A STANDARD OF CARE OR A VIOLATION OF A STANDARD OF CARE; THE DEFENSE MOTION FOR A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant hospital’s motion for a directed verdict in this med mal case, determined the plaintiff’s expert did not establish the applicable standard of care or a breach thereof. Plaintiff had executed a Medical Order for Life-Sustaining Treatment (MOLST) declining life-saving measures. Hospital personnel were not aware of the MOLST when plaintiff presented in the emergency room. When plaintiff became unresponsive, chest compressions were performed. Plaintiff was revived but he had suffered rib fractures. The plaintiff suffered a second heart attack and died seven hours later. The jury awarded damages for pain and suffering:

… [T]he court erred in denying [defendant’s] motion for a directed verdict. “[V]iewing the evidence in [the] light most favorable to [plaintiff] and affording [plaintiff] the benefit of every inference,” we conclude that there was “no rational process by which a jury could find in favor of” plaintiff inasmuch as there was no expert testimony establishing the applicable standard of care or a breach thereof … . At trial, plaintiff’s expert described how a hospital could communicate a patient’s MOLST in order to ensure that it was honored, what hospitals were “allowed” to do, what he would “expect,” what “should” happen, and what “option[s]” were available, but he did not state what an accepted standard of care required. Further, even assuming, arguendo, that plaintiff’s expert articulated a standard of care, we conclude that he failed to opine that any such standard was violated under the specific circumstances of this case … . Cianci v University of Rochester, 2025 NY Slip Op 06492, Fourth Dept 11-21-25

Practice Point: Consult this decision for an example of vague expert testimony in a med mal case which failed to articulate a standard of care or a breach thereof.

 

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THE JUDGE DID NOT FOLLOW THE REQUIRED PROCEDURE FOR FINDING NEGLECT ON A GROUND NOT ALLEGED IN THE PETITION; TO DO SO, THE JUDGE MUST AMEND THE ALLEGATIONS IN THE PETITION TO CONFORM TO THE PROOF AND GIVE THE RESPONDENT TIME TO RESPOND TO THE AMENDED ALLEGATIONS; NEITHER WAS DONE; PETITION DISMISSED (FOURTH DEPT).

The Fourth Department, dismissing the neglect petition, determined Family Court did not follow the required procedure for finding neglect on a ground which was not alleged in the petition. The court may amend the allegations in the petition to conform to the proof, provided the respondent is given a reasonable time to respond to the amended allegations. Here the court did not amend the allegations or give mother time to respond:

Pursuant to Family Court Act § 1051 (b), “[i]f the proof does not conform to the specific allegations of the petition, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations.” Here, the basis for the court’s finding of neglect pursuant to section 1012 (f) (i) (B) was not alleged in the petition, and the court did not amend the allegations to conform to the proof or give the mother notice or an opportunity to respond to any such implied amendment … . As the mother contends, had she known that the court was considering a theory of neglect based solely on her post-disclosure conduct, she would have prepared a defense to that theory. We therefore conclude that the court’s finding of neglect on that ground was improper … , and the petition must be dismissed … . Matter of Mariah W. (Amber N.), 2025 NY Slip Op 06487, Fourth Dept 11-21-25

Practice Point: To find neglect on a ground not alleged in the petition, the judge must conform the allegations in the petition to the proof and give the respondent time to respond to the amended allegations. Here the failure to follow that procedure resulted in dismissal of the petition.

 

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ALTHOUGH CLAIMANT’S MEDICAL REPORT DID NOT ADHERE TO THE REQUIREMENTS OF WORKERS’ COMPENSATION LAW 137 AND COULD BE DEEMED INADMISSIBLE FOR THAT REASON, THE EMPLOYER FAILED TO MAKE A TIMELY OBJECTION TO THE REPORT; THE PRECLUSION OF THE REPORT WAS THEREFORE ERROR (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the medical report (by Dr, Kountis) finding claimant had a 42.5% schedule loss of use (SLU) of the right wrist should not have been precluded because it did not meet the requirements of Workers’ Compensation Law 137. Although the Board has the power to preclude the report for that reason, the employer did not make a timely objection to the report:

Although “[a] report of an examination that does not substantially comply with the requirements of Workers’ Compensation Law [§] 137 . . . shall not be admissible as evidence,” a party raising an objection to such a report’s admissibility must “raise [that] objection in a timely manner” … . Claimant filed Kountis’ report in March 2023, after which the employer was notified that it had 75 days to respond in any of several enumerated ways, including by filing a memorandum to refute the sufficiency and credibility of the report. At no time during that 75-day period did the employer challenge Kountis’ report for failing to adhere to the requirements of Workers’ Compensation Law § 137. Further, the employer failed to raise the argument during the subsequent hearing held in September 2023. It is clear that the employer had, and failed to avail itself of, ample opportunity to challenge Kountis’ report prior to the WCLJ’s determination. As a result, the employer’s eventual challenge was untimely, and it was error for the Board to preclude Kountis’ report … . Matter of Troiano v New York City Hous. Auth., 2025 NY Slip Op 06377, Third Dept 11-20-25

Practice Point: If there are grounds for precluding a medical report for failure to meet the requirements of Workers’ Compensation Law 137, the employer must make a timely objection to the report. Here the employer failed to object to the report during the 75-day period allowed for objections and failed to object in a hearing held six or seven months after the report was filed. The Third Department determined, under those facts, it was error to preclude the report.

 

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PLAINTIFF WAS INJURED WHEN SHE USED HER ARM TO KEEP THE ELEVATOR DOOR FROM CLOSING; DEFENDANTS DEMONSTRATED THE ELEVATOR WAS IN GOOD WORKING CONDITION TWO WEEKS BEFORE PLAINTIFF’S INJURY; DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants (building owner and elevator company) were entitled to summary judgment dismissing the complaint which alleged the elevator doors slammed shut on plaintiff’s hand. A video showed that plaintiff extended her arm between the door frame and the elevator door to keep it from closing:

Movants sustained their initial burden of demonstrating that the elevator door was safe and code compliant at the time of the accident and that plaintiff’s conduct was the sole proximate cause of the accident. The report prepared by defendant … , approximately two weeks prior to the accident, found that the subject elevator was maintained commensurate with local industry practices and that the systems functioned at or near recommended standards. Moreover, the video of the incident, which plaintiff authenticated by testifying that it was a fair and accurate depiction of the events, showed that plaintiff extended her arm between the door frame and the elevator door to keep the door from closing. Such evidence was sufficient to demonstrate the absence of a triable issue of fact … . Ellerbee v 61 W. 62 Owners Corp., 2025 NY Slip Op 06386, First Dept 11-20-25

Practice Point: If you are injured using your arm or hand to stop an elevator door from closing and it is shown the elevator was working properly, your complaint will be dismissed. (But isn’t it foreseeable that people will try to stop an elevator door from closing with their hands, and shouldn’t there be a safety mechanism which would prevent the door from closing?)

 

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THE SEARCH WARRANT WAS BASED UPON STATEMENTS BY AN INFORMANT; BUT THE WARRANT APPLICATION DID NOT DEMONSTRATE THE BASIS OF THE INFORMANT’S KNOWLEDGE; THEREFORE THE EVIDENCE SEIZED PURSUANT TO THE WARRANT SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Second Department, reversing the Appellate Division, determined the search warrant failed the basis of knowledge requirement of the Aguilar-Spinelli test. The seized evidence should have been suppressed, requiring the dismissal of several counts:

… [W]e hold that as a matter of law the evidence provided in support of the 205 Curtis Street search warrant failed to satisfy the basis of knowledge requirement of the Aguilar-Spinelli test … . The general allegation that the informant was “aware that narcotics are kept inside the location” provides no indication “that the information was based upon personal observation” … . Likewise, the informant’s statement that at some unidentified point in time the informant had conducted a narcotics transaction at that address “did not describe defendant’s activities with sufficient particularity to warrant an inference of personal knowledge” … . Nor was the information conveyed by the informant corroborated by police observation … . Accordingly, the informant’s statements fail to meet the requirements of Aguilar-Spinelli and, because there are no other allegations in the search warrant affidavit to establish “a reasonable belief that an offense has been or is being committed or that evidence of a crime may” have been found at 205 Curtis Street … , the search warrant for that address was not supported by probable cause, and the evidence seized there should have been suppressed. People v Berry, 2025 NY Slip Op 06358, Second Dept 11-20-25

Practice Point: If a search warrant is based upon an informant’s statement, to be valid, the warrant application must demonstrate the information was based upon the informant’s personal knowledge.

 

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DOCUMENTS RELATING TO THE MENTAL-HEALTH TREATMENT OF A PEDOPHILE PRIEST WERE NOT PROTECTED BY PRIEST-PENITENT, PHYSICIAN-PATIENT OR PSYCHOLOGIST-PATIENT PRIVILEGES; THE NAMES OF OTHER CHILDREN ABUSED BY THE PRIEST ALLEGED TO HAVE ABUSED PLAINTIFF ARE DISCOVERABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined progress reports concerning the mental health treatment of a pedophile priest were discoverable without redaction in this Child Victims Act case against the Diocese. The Diocese claimed the redacted information was protected from disclosure by the priest-penitent, physician-patient and psychologist-patient privileges. The Second Department determined those privileges were waived by the (pedophile) priest who consented to forwarding the reports to a third-party, a Bishop overseeing the priest’s progress. In addition, the priest-penitent privilege did not apply because the documents did not relate to spiritual guidance. The Second Department further determined that the names of other victims allegedly abused by the same priest were discoverable:

This appeal permits us to address two principal sets of issues. The first is a rare two-step analysis regarding the potential disclosure of progress reports and letters generated at the request of a religious organization to determine whether an alleged pedophile priest could be safely returned to duties at a parish. Under the circumstances of this appeal, we hold that the progress reports of an alleged pedophile priest that are shared with his Bishop with accompanying letters, to assist the Bishop in determining whether the priest may return to parish duties, fall outside the scope of the clergy-penitent privilege of confidentiality under CPLR 4505. Further, we hold that the physician-patient and psychologist-patient privileges of confidentiality for progress reports and letters generated by a psychological treatment facility to assist the same Bishop’s determination, and disclosed to the Bishop for that purpose, are waived under CPLR 4504 and 4507. Relatedly, we hold that the Appellate Division, Second Department, agrees with the reasoning of the Appellate Divisions, First and Third Departments, that in actions pursuant to the Child Victims Act (CVA) (see CPLR 214-g), courts may exercise discretion in favor of requiring the unredacted disclosure of the identities of alleged abuse victims other than the plaintiff, so long as those abuses were committed by the same alleged abuser rather than by any other alleged abuser. Maida v Diocese of Brooklyn, 2025 NY Slip Op 06314, Second Dept 11-19-25

​Practice Point: Consult this opinion for discussions of the nature of the priest-penitent, physician-patient and psychologist-patient privileges in the context of the discovery of documents relating to the mental health treatment of a pedophile priest accused of abusing children.

Practice Point: Consult this opinion for a discussion of the discoverability of the names of other children abused by the priest who is alleged to have abused the plaintiff.

 

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GENERALLY A HOMEOWNER WHO DOES NOT DIRECT THE WORK ON THE HOME CANNOT BE HELD LIABLE FOR A LADDER-FALL PURSUANT TO LABOR LAW 240(1); BUT THE HOMEOWNER’S EXEMPTION DOES NOT APPLY WHEN THE WORK IS RELATED TO A COMMERCIAL PURPOSE; HERE THERE WERE QUESTIONS OF FACT WHETHER THE PROPERTY WAS TO BE USED FOR COMMERCIAL PURPOSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the defendant property-owner in this ladder-fall case was entitled to the homeowner’s exemption from Labor Law 240(1) liability because the work related to a commercial purpose:

“Although the Labor Law generally imposes liability for worker safety on property owners and contractors, it exempts from liability ‘owners of one and two-family dwellings who contract for but do not direct or control the work'” ( … Labor Law §§ 240[1]; 241[6]). However, “[t]he exemption ‘was not intended to insulate from liability owners who use their one- or two-family houses purely for commercial purposes'” … . “‘[R]enovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose'” … . “Where the property serves both residential and commercial purposes, [a] determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner’s intentions at the time of the injury” … .

Here, the defendant failed to eliminate triable issues of fact as to whether he was entitled to the homeowner’s exemption, including whether the work being performed related to a commercial purpose of the premises … and whether the defendant intended to use the premises as a three-family dwelling … .  Reyes v Rahman, 2025 NY Slip Op 06348, Second Dept 11-19-25

Practice Point: The homeowner’s exemption from Labor Law 240(1) liability does not apply where the home is used for commercial purposes.​

 

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PLAINTIFF FELL GOING DOWN PERMANENT STEPS AFTER HE STEPPED OFF THE LADDER; THERE WAS NO LIABILITY UNDER LABOR LAW 240(1)—NO FAILURE OR ABSENCE OF A SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was no liability under Labor Law 240(1) because plaintiff fell going down permanent steps after he stepped off the ladder:

Plaintiff testified that on the day of his accident he was working in a meeting room that had projection screens, soundproof walls, and raised floors, including a platform for the speakers. The platform had two access points — one via a ramp and the other on the opposite side of the platform, via a two-step staircase. Plaintiff needed to work on the ceiling above the platform, so he placed his ladder on the platform near the staircase. After he completed his work, he descended the ladder and placed both feet on the platform floor. He then turned to walk down the two-step staircase, missed a step, and fell.

There is no liability pursuant to Labor Law § 240(1) where the plaintiff’s injuries are not related to the failure of a safety device, such as a ladder, to protect the plaintiff from a gravity-related hazard … . Where the “injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no [Labor Law § 240(1)] liability exists” … . Healy v Trinity Hudson Holdings, 2025 NY Slip Op 06278, First Dept 11-18-25

Practice Point: The failure of absence of a safety device is a prerequisite for liability under Labor Law 240(1). Here plaintiff safely stepped onto a permanent platform from the ladder and then fell going down permanent steps—no Labor Law 240(1) liability.​

 

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PLAINTIFF TESTIFIED HE WAS STANDING AT THE TOP OF AN UNSECURED A-FRAME LADDER WHEN IT MOVED AND HE FELL; THE FACT THAT THERE WERE NO WITNESSES DID NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this A-frame ladder-fall case. Plaintiff was standing at the top of the unsecured ladder when it moved and he fell. The fact that there were no witnesses to the accident did not raise a question fact because plaintiff’s testimony was not contradicted and his credibility was not called into question:

Plaintiff testified at his deposition that he worked at the top of the ladder, which was unsecured, it suddenly moved and fell, causing him to land on the floor and injure his shoulder. Plaintiff also testified that after he fell from the ladder, he stood it back up before his supervisor returned. The supervisor stated that upon his return to the room, plaintiff, who was standing next to the upright ladder, told him that the ladder was shaky and had fallen because no one was holding it.

Plaintiff made a prima facie showing that his injuries were proximately caused by a violation of Labor Law § 240(1). The evidence established that defendant failed to provide a safety device to ensure that the ladder, which plaintiff was instructed to use, would remain upright while he worked. The evidence also showed that plaintiff fell off the ladder when it shifted and fell … . This evidence was sufficient to establish a prima facie case, and plaintiff was not obligated to show that the ladder itself was defective … . Molina v Chatham Towers, Inc., 2025 NY Slip Op 06285, First Dept 11-18-25

Practice Point: To warrant summary judgment in a ladder-fall case, it is enough that the ladder was unsecured and moved. There is no need to show the ladder was defective.

 

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